Moderation re: the Right of Postliminy

The Law of War and Peace (1625)

by Hugo Grotius

BOOK 3, CHAPTER 16Moderation in Regard to Those Things Which by the Law of Nations Have Not the Right of Postliminy

I. Moral justice requires that the things which our enemy has taken from another in an unlawful war shall be restored.1. WE have explained above to what extent things become the property of the captors by a lawful war. From such things we must deduct those which are recovered by right of postliminy; for these are regarded as not having been captured.

But we said that that which was taken in an unlawful war must be restored, not only by those who took it, but also by others to whom the thing has come in any manner whatsoever. For no one, the authorities of the Roman law declare, can transfer to another more right than he himself has. This Seneca briefly explains thus: ‘No man can give what he does not have.’ The person who first took: the thing did not have moral ownership (dominium internum), therefore the person who obtains his right from him will not have it; hence the second or third possessor takes an ownership which, for the sake of explanation, we call legal (externum), that is, an ownership’ which has the advantage of being everywhere protected by the authority and power of the courts. Nevertheless, if the possessor uses this advantage against him from whom the thing was taken by an act of injustice, he will not act rightly.

2. We may here cite as pertinent the opinion which the worthy jurists gave with regard to a slave who had been captured by robbers and had afterward reached the enemy; it was true that he had been stolen, and neither the fact that he had been in the power of the enemy nor that he had returned by postliminy nullified the right of the original owner. On the basis of the law of nature a similar opinion must also be rendered with regard to him who was captured in an unlawful war, and afterward, through an unlawful war, or from other causes, came into the power of another; for in moral justice there is no distinction between an unlawful war and brigandage. Gregory of Neocaesarea gave answer in conformity with this opinion when he was consulted regarding the fact that certain men of Pontus, had acquired goods of their fellow citizens which had been captured by barbarians.

II. Examples.1. Such things, then, must be restored to those from whom they were taken; and we often see that this has been done. Livy, after relating that the Volscians and Aequians were defeated by Lucius Lucretius Tricipitinus, says that the spoil was exposed in the Campus Martius, in order that each might take home what belonged to him within three days. The same author, having told of the rout of the Volscians by the dictator Posthumius, adds: ‘ Part of the booty was given back to the Latins and Hernicans upon their recognizing what was theirs; part the dictator sold at auction.’ Elsewhere he has: ‘Two days were allowed to the owners for identifying their property.’ Livy, again, after describing the victory of the Samnites over the Campanians, writes: ‘ What most delighted the victors was the recovery of seven thousand four hundred prisoners of war, and a huge booty belonging to their allies; and the owners were summoned by proclamation to identify and recover their belongings on an appointed day.’ Afterward he recounts a similar act on the part of the Romans:

The Samnites attempted to seize the Roman colony of Interamna, but did not take the city. After pillaging the fields, they were thence driving off another booty composed of both men and cattle and also the captured colonists, when they fell in with the consul returning from Luceria, and not only lost their spoil, but, owing to being in disorder in a long and encumbered column, they were themselves cut to pieces. The consul by proclamation called together the owners of Interamna to identify and recover their property, and leaving his army there, he set out for Rome because of the meeting of the assembly.

In another passage, dealing with the spoil which Cornelius Scipio had taken at Ilipa, a city in Lusitania, the same writer speaks thus ‘This was all set out outside the town, and owners were given the right to identify what was theirs. The rest was turned over to the quaestor to be sold; what was realized therefrom was divided among the soldiers.’ After the battle fought by Tiberius Gracchus near Beneventum, we further read in Livy: ‘All the booty, except the prisoners, was given to the soldiery; there were also excepted such cattle as their owners should identify within thirty days.’

2. Of Licius Aemilius, who conquered the Gauls, Polybius writes: ‘He restored the booty to those from whom it had been seized.’ Plutarch and Appian relate that Scipio did likewise,.’ when upon capturing Carthage he found there many temple offerings which the Carthaginians had carried thither from the cities of Sicily and other places.

Cicero in his oration Against Verres, dealing with the administration of justice in Sicily, says: ‘ The Carthaginians had at one time taken the town of Himera, which was a particularly famous and rich city of Sicily. When the war was ended, Scipio, who thought it worthy of the Roman people that our allies, in consequence of our victory, should recover what was theirs, took pains that, so far as possible, what had been taken by Carthage should be restored to all the Sicilians.’ The same writer gives a sufficiently lengthy discussion of this act of Scipio when treating of the statues in his oration Against Verres.

The Rhodians restored to the Athenians four of their ships which had been taken by the Macedonians and recaptured. So Phaneas the Aetolian thought it right that what the Aetolians had had before the war should be returned to them; Titus Quintius did not deny that this would be just, if it were a question of cities taken in war,’ and if the Aetolians had not broken the terms of the alliance. The Romans even restored to their ancient condition’ the treasures once dedicated at Ephesus, which kings had made their own.

III. Whether anything may be deducted from that which is restored.1. If a thing of the sort under consideration has come into any one’s hands by way of trade, will he be able to charge the person from whom it was originally taken the price which he has paid?

It is consistent with what we have said elsewhere that the possessor may charge as much as the recovery of the thing despaired of would have been worth to him who had lost it. But if such an outlay may be recovered, why not also an evaluation of the labor and danger, just as if by diving some one had recovered another’s property which was lost in the sea? Pertinent to this question, it seems to me, is, the story of Abraham, when he returned to Sodom as victor over the five kings. ‘He brought back all the goods,’ says Moses; that is,, the goods which, as he had previously related, had been captured by the kings.

2. Again we are not to attribute to any other cause the arrangement which the king of Sodom proposed to Abraham, that he should’ restore the prisoners, but keep the other things for himself in return for his toil and danger. Abraham, however, being a man not only of a pious but also of a lofty mind,’ wished to take nothing at all for himself; but from the things that were recovered (for this narrative, as we have said, relates to them) as though by his own right he gave a tenth to God, deducted the necessary expenses, and desired that a share be assigned to his allies.

IV. Even subject peoples or divisions of peoples are to be restored to those to whom they belonged, if they have been unjustly taken over by the enemy.Furthermore, just as goods are to be restored to their owner, so peoples also, and divisions of peoples, are to be restored to those who had the right of dominion over them, or even to themselves, if they had been independent prior to suffering the unjust violence. Thus we learn from Livy that, in the time of Camillus, Sutrium was recovered and restored to the allies of the Romans. The Lacedaemonians restored the Aeginetans and the Melians to their cities. The Greek states, which had been invaded by the Macedonians, were restored to freedom by. Flaminius.

Flaminius also, in a conference with the ambassadors of Antiochus, declared it was right to set free the cities of Asia, which bore Greek names and which had been captured in war by Seleucus the great-grandfather of Antiochus, which had been lost and recovered by the same Antiochus; ‘for,’ he said, ‘the colonies were not sent to Aeolia and Ionia to be subject to a king, but to increase the race, and to spread a very ancient people throughout the world.’

V. At what time the obligation to make restoration ceases.Usually the question is raised also regarding the period of time in which the moral obligation to restore a thing may cease. But in the case of citizens under the same government the question is answered according to their laws, provided that these admit a moral’ right and do not consist in a legal right only; this may be gathered’ from the language and scope of the laws by a careful examination,’ In the case of those, however, which are foreign in relation to one another, the question is to be answered in accordance with conjecture as to abandonment, which we have discussed elsewhere, so far as our purpose requires.

VI. What is to be done in a doubtful case.If, however, the lawfulness of the war is seriously open to question, the best course will be to follow the counsel of Aratus of Sicyon,’ who on the one side persuaded the new possessors to accept payment and to give up what they held, and on the other persuaded the former, owners to consider it more advantageous to have paid to them the value of their property than to recover it.